High Court of Punjab and Haryana, Chandigarh
Case Law Search
Daler Singh v. State of Punjab - CRM-44549-2006  RD-P&H 11447 (29 November 2006)
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Date of decision : December 13, 2006
Daler Singh .... Applicant/Appellant
State of Punjab .... Respondent
Coram: Hon'ble Mr. Justice Virender Singh Hon'ble Mr. Justice A.N. Jindal
Present : Mr. KS Dhaliwal, Advocate, for the applicant-appellant Mr. K.S.Boparai, Additional Advocate General Punjab assisted by Mr. M.S.Sidhu, Senior Deputy Advocate General, Punjab Mr. H.S.Hooda, Advocate General, Haryana with Mr. Siddharth Batra, Assistant Advocate General, Haryana Mr. RS Rai, Senior Standing Counsel, U.T. Chandigarh Mr. D.D. Sharma, Standing Counsel, Union of India.
Virender Singh, J.
The plight of convicts languishing in jails, after conviction, during the pendency of the appeals, on account of previous fixture of work has always been a matter of great concern for the Courts and of the Criminal Misc. No. 44549 of 2006 in
protagonists of Human Rights, alike. The present case is also of the like nature.
Applicant-appellant Daler Singh is praying for suspension of substantive sentence awarded to him under section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'the Act') primarily on the ground that he has by now already undergone more than seven years of his sentence out of the awarded substantive sentence of 12 years and that besides that the appeal is not likely to be heard in near future.
Not only the present appeal but also a large number of other appeals filed by the convicts under the Act which are not likely to be taken up in near future, has attracted our attention and therefore, we are framing certain guidelines/policy for the grant of bail where the appeals against the conviction under the Act filed in this Court cannot be heard within a reasonable time.
We have heard Mr. K.S.Dhaliwal, learned counsel for the applicant-appellant and Mr. K.S.Boparai, Additional Advocate General, Punjab assisted by Mr. M.S.Sidhu, Senior Deputy Advocate General, Punjab and have also sought the assistance of Advocate General, Haryana, Senior Standing Counsel, Union of India and Senior Standing Counsel, Union Territory, Chandigarh on the point. Consequently, Mr.
H.S.Hooda, learned Advocate General, Haryana, assisted by Mr. Siddharth Criminal Misc. No. 44549 of 2006 in
Batra, AAG Haryana, Mr. RS Rai, Senior Standing Counsel, U.T.
Chandigarh and Mr. D.D.Sharma, Standing Counsel, Union of India have been given audience on behalf of respective States.
Without delving deep into the scheme of the Act, we at this juncture are concerned only with a few provisions relating to the suspension of sentence and the release of the accused on bail during pendency of the appeal.
The original Act as incorporated in the year 1985 provided for minimum sentence of ten years and fine of Rs.1,00,000/- and could extend to twenty years and a fine of Rs.2,00,000/-, irrespective of the quantity of the contraband, except in cases of young men below 18 years of age or where a minor quantity of narcotics meant for consumption of the individual was involved. In some cases the sentence could extend to even death penalty. As regards the provisions of bail during trial, Section 37 was incorporated and it was made stringent by mentioning that the bail could be granted on the following conditions :- "(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of Criminal Misc. No. 44549 of 2006 in
such offence and that he is not likely to commit any offence while on bail."
Prior to the amendment by way of Act No.2 of 1989, there were no specific provisions for post conviction suspension of sentence during the appeal. Examining the difficulties prevailing in the Courts that the accused involved in petty recoveries of the narcotics were being dealt with stringently by providing minimum sentence of 10 years, it was felt that sentence awarded against the accused should commensurate with the gravity of the offences and there should be specific provisions governing the suspension of sentence during the pendency of appeal and in order to over-come the aforesaid difficulties, Act No.2 of 1989 named as Narcotic Drugs & Psychotropic Substance (Amendment) Act, 1988 came into force with effect from 29.5.1989, wherein a table under Clauses 7(a) and 13(a) of Section 2 of the Act was brought on the statute book, classifying the quantity of the narcotic as commercial and non-commercial one. While relaxing the provisions regarding bail in the cases involving non- commercial quantity as was classified in the table, provisions regarding bail in cases of commercial quantity were allowed to remain the same. In order to make the punishment harsher and stringent, two sections i.e. 32-A and 36-B were added with regard to the suspension of sentence during the appeal. Chapters No. XXIX and XXX of the Code of Criminal Procedure Criminal Misc. No. 44549 of 2006 in
1973 were made applicable to the appeals through Section 36-B of the Act which reads as under :
"Appeal and revision- The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973, on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Sessions trying cases within the local limits of the jurisdiction of the High Court" Section 389 Code of Criminal Procedure dealing with the provisions of suspension of sentence during appeal was covered under Chapter XXIX but these powers vested in the Appellate Court regarding the suspension of sentence were taken away by Section 32-A of the Act inserted by the same Act No.2 of 1989 which reads as under :- "32-A. No suspension, remission or commutation in any sentence awarded under this Act- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force but subject to the provisions of section 33, no sentence awarded under this Act (other than section 27) shall be Criminal Misc. No. 44549 of 2006 in
suspended or remitted or commuted."
In the light of this section it was widely felt that no sentence could be suspended during the pendency of the appeal as the powers conferred under Section 36-B upon the appellate Courts were taken away by Section 32-A of the Act. The matter with regard to scope and powers of the Appellate Court with regard to the suspension of sentence was considered by the Apex Court in case Maktool Singh vs. State of Punjab, 1999 (2) RCR (Crl.) 130 wherein it was observed as under :- "25. The upshot of the discussion is that Section 32A of the Act has taken away the powers of the court to suspend a sentence passed on persons convicted of offences under the Act (except Section 27) either during pendency of an appeal or otherwise. Similarly, the power of the Government under Section 432, 433 and 434 of the Criminal Procedure Code have also been taken away. Section 32-A would have an overriding effect with regard to the powers of suspension, commutation and remission provided under the Criminal Procedure Code."
The Apex Court took into consideration the difficulties being experienced by the Courts, the accused and the swelling number of Criminal Misc. No. 44549 of 2006 in
the cases, in Maktool Singh's case (supra) and was pleased to make a stop- gap arrangement observing as under:-
"The solution to such problems can be worked out by Parliament under the Act on a priority basis and dispose them of as early as possible. As a temporary measure to lessen the problem we direct the Registry of each High Court to include every appeal (against conviction of offenes under the Act) in the hearing list as soon as such appeal becomes ripe for hearing. We express the hope that the Bench of the High Court concerned would give preference to such appeal for early hearing." Subsequently the Apex Court in case Dadu alias Tulsi Dass vs. State of Maharashtra, 2000 (4) RCR (Criminal) 275, while giving priority to the right of liberty and speedy trial of a citizen struck down the provisions of Section 32-A in as far as relating to the suspension of sentence during the pendency of the appeal by making the following observations :-
"17. Not providing atleast one right of appeal would negate the due process of law in the matter of dispensation of criminal justice. There is no doubt that the right of appeal is the creature of a statute and when Criminal Misc. No. 44549 of 2006 in
conferred a substantive right. Providing a right of appeal but totally disarming the court from granting interim relief in the form of suspension of sentence would be unjust, unfair and violative of Article 21 of the Constitution particularly when no mechanism is provided for early disposal of the appeal. The pendency of criminal litigation and the experience in dealing with pending matters indicate no possibility of early hearing of the appeal and its disposal on merits atleast in many High Courts. As the present is not the occasion to dilate on the causes for such delay, we restrain ourselves from that exercise. In this view of the matter, the appellate powers of the Court cannot be denuded by Executive or judicial process. "
While taking serious note of this stringent law, curtailing the powers of the Appellate Court to suspend the sentence, the Apex Court after dealing with many precedents further observed as under :- "24. Judged from any angle, the Section in so far as it completely debars the appellate courts from the powers to suspend the sentence awarded to a convict under the Criminal Misc. No. 44549 of 2006 in
Act cannot stand the test of constitutionality. Thus Section 32A in so far as it ousts the jurisdiction of the Court to suspend the sentence awarded to convict under the Act is unconstitutional. We are, therefore, of the opinion that Allahabad High Court in Ram Charan's case (supra) has correctly interpreted the law relating to the constitutional validity of the section and the judgment of Gujarat High Court in Ishwar Singh M. Rajput's case cannot be held to be good law.
"25. Despite holding that Section 32A is unconstitutional to the extent it affects the functioning of the criminal courts in the country, we are not declaring the whole of the section as unconstitutional in view of our finding that the Section, in so far as it takes away the right of the Executive to suspend, remit and commute the sentence, is valid and intra vires of the Constitution. The Declaration of Section 32A to be unconstitutional, in so far as it affects the functioning of the courts in the country, would not render the whole of the section invalid, the restriction imposed by the offending section Criminal Misc. No. 44549 of 2006 in
being distinct and severable.
While declaring Section 32-A, in so far as ousting the jurisdiction of the Appellate Court to suspend the sentence during pendency of the appeal as ultravires, the Apex Court further declared that the Courts are empowered to suspend the sentence and grant bail while keeping in view the provisions of Section 37 of the Act. But the thrust of the Apex Court was to give primacy to the fundamental right of the accused of a speedy trial and speedy justice.
After the judgment of the Apex Court in Dadu's case (supra), a doubt still persisted regarding the powers of the High Courts to suspend the sentence in the light of stringent provisions of Section 37 of the Act, which were to be taken note of while dealing with the application for suspension of sentence in appeal under the Act. In the light of Maktool Singh vs. State of Punjab and Dadu alias Tusli Ram vs. State of Maharashtra's cases ( supra ), a Full Bench of this Court in case Tule Ram vs. State of Haryana, 2005(4) RCR (Criminal) 319 taking due note of the various provisions of law and also the different judgments passed by the Apex Court from time to time observed as under :- "11. There can be no dispute with this proposition but one cannot lose sight of the fact that the Apex Court in Brahmajeetsingh Sharma's case (supra) was dealing with Criminal Misc. No. 44549 of 2006 in
a provision which related to grant of bail during trial and not with regard to grant of bail post-conviction. We fail to see how the judgment of the Apex Court would help us to conclude that the law as enunciated by the Apex Court in relation to Maharashtra Control of Organised Crime Act, 1999 would be applicable to the appeals filed against conviction under the NDPS Act. Section 37 of the NDPS Act will have to be applied differently when one is dealing with a bail application filed pending trial as against one's filed in appeals. What the Apex Court in Ranjit Singh Brahmajeetsingh Sharma's case (supra) has laid down are the guidelines for dealing with the bail applications during trial but these cannot be of any assistance regarding the post-trial stage where the accused already stands convicted."
The Full Bench while dealing with the matter and keeping in view the magnitude of the menace, observed that "in view of this that a strict interpretation will have to be placed to the effect that the Act, as presently framed, does not provide for any post conviction suspension of sentence as it would be inappropriate for the High Court to read into the Criminal Misc. No. 44549 of 2006 in
judgment in Dadu's case (supra) what is not explicitly provided for therein" but, still giving some concession to the accused for seeking relief of suspension of sentence and keeping in view the Constitutional mandate, as provided under Article 21 of the Constitution of India, the Full Bench further observed as under :-
"We are conscious of the fact that according to the constitutional mandate of Article 21 of the Constitution of India a speedy trial is guaranteed by the State for all person falling foul with law. Since an appeal is only an extension of the trial, the Courts of law would be obliged to ensure the expeditious disposal and pass appropriate orders as and when they feel that the right of the convict to the guarantee provided under Article 21 of the Constitution of India is being interfered with. As and when any appellant moves this Court, then taking into consideration the facts and circumstances of the case, in case of delay in the disposal appeal is not attributable to the appellant himself, the Court may pass such orders as the appellant may be entitled in view of the provisions of Article 21 of the Constitution of India ." Criminal Misc. No. 44549 of 2006 in
It cannot be disputed that under the constitutional scheme an accused is entitled to a speedy trial and speedy justice. An appeal is a continuation of trial. His right to liberty is fundamental one but some provisions with regard to curtailing his liberty could be enacted and the same, if reasonable, could be taken as valid. However, the absolute bar as to curtail liberty of the accused, even if the delay in final disposal of the appeal is not attributable to him, can certainly be said to be against the intent and spirit of the Fundamental Rights and would be violative of the Constitutional mandate. As such the liberty of the accused cannot be taken away absolutely for an indefinite period. We are afraid if liberty of an accused is curtailed unreasonably, then his right to appeal will be defeated; his destiny will be unimaginable if he is ultimately acquitted after he has undergone almost the entire sentence or major chunk of it, and no body would come to explain the justification for the period of his confinement during which he remained in custody till the disposal of the appeal. The plight of such convicts can well be imagined.
The delay in disposal of the criminal appeals pending in the High Courts is a matter of serious concern. We have, therefore, called upon the Additional Registrar (Judicial) of this Court to give us in writing a year wise statement of all pending Single Bench and Division Bench appeals under the Act against the conviction upto date. As per the Criminal Misc. No. 44549 of 2006 in
information supplied to us, 3931 Single Bench appeals are pending in this Court for disposal. Out of the said pendency in 806 appeals, the appellants (convicts) are in custody. 1268 Single Bench appeals are on Board for final hearing, out of which 510 appellants are in custody.
We have also been informed by the Additional Registrar (Judicial) that 219 Division Bench appeals under the Act are pending in this Court and in almost all the appeals, the convicts are in custody.
We have also come across many cases which have been listed for final hearing but could not be heard due to paucity of time and other unavoidable reasons and for the fault not attributable to the accused. It is this alarming situation that needs our serious attention. It is the plight of such prisoners that we must address ourselves to. In this background Mr.
K.S. Dhaliwal, Advocate has advanced his contentions in the course of hearing urging that some outer limit of the period of custody in all should be provided and detention thereafter should entitle the accused convict to bail irrespective of the merits of the case.
In order to strengthen his arguments, Mr. Dhaliwal has also relied upon the judgment rendered in Man Singh vs. Union of India, 2006 (2) RCR (Criminal) 73 wherein the Apex Court while noticing Dadu's case (supra) suspended the sentence and granted bail to the accused mainly on the following grounds :-
Criminal Misc. No. 44549 of 2006 in
1. The appellant has already undergone more than 7 years of imprisonment.
2. There is no likely-hood of the appeal being heard in the near future.
Mr. Dhaliwal also relies upon another order of Division Bench of this Court dated April 18,2006 rendered in Criminal Appeal No. 103-DB of 2006, Shinder Singh vs State of Punjab, vide which the appellant who was convicted under section 15 of the Act for allegedly carrying 315 kgs of poppy husk, was granted the concession of suspension of substantive sentence after he had undergone more than five years out of 20 years sentence imposed upon him. We reproduce the relevant para from the said order as under:-
"The learned counsel for the applicant-appellant has attempted to bring his case within the exception carved out in paragraph 13 of the report. We re-produce paragraph 13 herein below: "While giving the interpretation, we are conscious of the fact that according to the constitutional mandate of Article 21 of the Constitution of India a speedy trial is guaranteed by the State for all persons falling foul with law. Since an appeal is only an extension of the trial, the Courts of law would be obliged to ensure the expeditious Criminal Misc. No. 44549 of 2006 in
disposal of the appeals and pass appropriate orders as and when they feel that the right of the convict to the guarantee provided under Article 21 of the Constitution of India is being interfered with. As and when any appellant moves this Court, then taking into consideration the facts and circumstances of the case, in case the delay in the disposal of the appeal is not attributable to the appellant himself, the Court may pass such orders as the appellant may be entitled in view of the provisions of Article 21 of the Constitution of India." Mr. A.S.Grewal, the learned Addl. A.G. Punjab has, however, pointed out that the Full Bench had in terms held that bail in narcotics matters after conviction could not be granted. The learned counsel is broadly right in his assertion, but paragraph 13 quoted above, clearly makes an exception where the disposal of the appeal is likely to be delayed, and where there is no possibility of the same being heard in the near future. This is a matter which has to be heard by a Division Bench, we are of the opinion that keeping in view the present situation, the possibility of this appeal being heard in the foreseeable future Criminal Misc. No. 44549 of 2006 in
is very remote as appeals of the years prior to the year 2000 are presently being heard. We accordingly allow this Crl. Misc.
and direct that applicant-appellant Shinder Singh shall be released on bail to the satisfaction of the Chief Judicial Magistrate, Mansa. We also direct that the recovery of fine shall remain stayed during the pendency of the appeal.
Acting Chief Justice
Sd/- Ranjit Singh
April 18, 2006. Judge
Mr. Dhaliwal also relies upon another order dated 22.5.2005 passed in Criminal Appeal No. 836-DB of 2003 passed by a Division Bench of this Court regarding suspension of substantive sentence in which the appellant was granted bail primarily on the basis of the long detention of the accused observing as under:-
"6. It is not disputed that appellant has undergone more than 6- 1/2 years of actual sentence. No doubt, there is a bar in granting bail under Sections 32-A and 37 of the Narcotic Drugs & Psychotropic Substances Act, (hereinafter referred to as "the Act"), but the Hon'ble Supreme Court in Dadu alias Tulsidas v. State of Maharashtra, 2000(4) RCR (Criminal) Criminal Misc. No. 44549 of 2006 in
275 has held that sentence of the appellant can be suspended.
It was held by the Hon'ble Supreme Court that Section 32-A of the act is partially unconstitutional, as it curtails the power of the Appellate Court to suspend the sentence during appeal. " On the other hand Mr. Hawa Singh Hooda, learned Advocate General, Haryana who is assisted by Mr. Siddharth Batra, learned Assistant Advocate General, Haryana while picking up the thread, contends that of course certain guidelines may be framed for extending the concession of suspension of sentence to the convicts whose appeals are not heard for a reasonably long period but certain hardened criminals like habitual offenders or inter-State contraband traffickers or foreign nationals should not be held entitled to this concession of the guidelines being framed as granting them bail would amount to encouraging them and once they are enlarged on bail they may again indulge in the same nefarious activities.
Mr. Hooda then contends that in some of the cases it is noticed that the convicts are also facing trial for other offences along with the cases registered against them under the Act. Even if presumption of innocence is in their favour, still in such type of situation such convicts may not be extended this concession. He then contends that the convicts found in possession of heavy quantity of contraband or who were otherwise indulging in drug trafficking should also be dealt with severely. The Criminal Misc. No. 44549 of 2006 in
leniency if shown to such offenders, would be against the Legislative intent and spirit and would defeat the very purpose of enactment of this 'Act'.
Mr. Hooda otherwise submits that an efforts should be made to dispose of their appeals on priority even by constituting special Benches exclusively for this purpose.
The other State counsel of respective States have adopted the views of Mr. Hooda and have not added their individual view point.
While dealing with the question of releasing a convict on bail in a case where he was sentenced to life imprisonment for an offence under section 302 of Indian Penal Code, the Hon'ble Apex Court in Kashmir Singh vs State of Punjab, AIR 1977 (SC) 2147 observed as under:- "It would, indeed, be travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified ? Would it be just at all for the Court to tell a person, "We have admitted your appeal because we think you have a prima facie case, but unfortunately, we have no time to hear your appeal for quite a few years, and, therefore, until we hear your appeal, you must remain in jail, even though you Criminal Misc. No. 44549 of 2006 in
may be innocent" ? What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact, happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal was taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such person who has already served out his term of imprisonment or at any rate a major part of it? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and as long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail. xx xxx xxx xxx xxx." Dealing with the question regarding bail to under-trials languishing in jails, the Apex Court in case Supreme Court Legal Aid Criminal Misc. No. 44549 of 2006 in
Committee representing Undertrial Prisoners vs. Union of India, 1994 (3) RCR (Crl.) 639 issued some guidelines and in para No.16 thereof observed that the aforesaid guidelines were intended to operate as one time directions in those cases in which the accused persons were languishing in jail and their trials were delayed. Thus, obviously this judgment could not be applied for two reasons: (i) that it was applicable in cases of under- trials; and (ii) these were one time directions. However, the directions are in no way against the legislative intent but are in furtherance of Article 21 of the Constitution of India. Therefore, it will also not be inappropriate if similar principles are followed with some variations and modifications in cases relating to convicts who are languishing in jails for the reasons that their appeals are not likely to be heard for a considerable period, are framed by us.
Again, this Court also while classifying the offences, where the convicts were sentenced for life imprisonment, dealt with the aspect regarding the suspension of sentence in case Dharam Pal vs. State of Hayana, 1999 (4) RCR (Criminal) 600 and issued some guidelines regarding the suspension of sentence during the pendency of the appeal, which were subsequently approved by the Apex Court in case Surinder Singh alias Shingara Singh vs. State of Punjab 2005(4) RCR (Criminal) 103.
Criminal Misc. No. 44549 of 2006 in
Even Full Bench of this Court in Tule Ram's case (supra) also did not choose to lay down an absolute embargo upon the powers of this Court for suspension of sentence in cases where the provisions of Article 21 appear to be violated. It is because of this that we have felt that after the accused persons have suffered a substantial part of the punishment awarded for the offence, then even after filing of the appeals, any further deprivation of personal liberty would be violative of the fundamental right visualized by Article 21' which has to be telescoped with the right guaranteed by Article 14, which also promises justness, fairness and reasonableness in procedural matters.
In a latest judgment rendered in Salem Advocates Bar Association, Tamil Nadu vs Union of India, 2005(3) Civil Court Cases 420(SC), the Apex Court while dealing with the issue of disposing of the appeals under different Acts including the NDPS Act laid certain guidelines for the Courts to make an endeavour to dispose of the appeals within a fixed period by putting the cases in different tracks. The same are reproduced as under:-
"Criminal Appeals should be classified based on offence, sentence and whether the accused is on bail or in jail.
Capital punishment cases, rape, sexual offences, dowry death cases should be kept in Track I. Other cases Criminal Misc. No. 44549 of 2006 in
where the accused is not granted bail and is in jail, should be kept in Track II. Cases which affect a large number of persons such as cases of mass cheating, economic offences, illicit liquor tragedy, food adulteration cases, offences of sensitive nature should be kept in Track III.
Offences which are tried by special courts such as POTA, TADA, NDPS, Prevention of Corruption Act, etc. should be kept in Track IV. Track V all other offences.
The endeavour should be complete Tract I cases within a period of six months. Track II cases within nine months. Track III within a year, Track IV and Track V within fifteen months."
We, therefore, feel that keeping in view the spirit of Article 21, the following principles should be adopted for the release of the prisoners (convicts) on bail after placing them in different categories as under :- (i) Where the convict is sentenced for more than ten years for having in his conscious possession commercial quantity of contraband, he shall be entitled to bail if he has already undergone a total sentence of six years, Criminal Misc. No. 44549 of 2006 in
which must include alteast fifteen months after conviction.
(ii)Where the convict is sentenced for ten years for having in his conscious possession commercial quantity of the contraband, he shall be entitled to bail if he has already undergone a total sentence of four years, which must include alteast fifteen months after conviction.
(iii)Where the convict is sentenced for ten years for having in his conscious possession, merely marginally more than non-commercial quantity, as classified in the table, he shall be entitled to bail if he has already undergone a total sentence of three years, which must include alteast twelve months after conviction (iv)The convict who, according to the allegations, is not arrested at the spot and booked subsequently during the investigation of the case' but his case is not covered by the offences punishable under section 25, 27-A and 29 of the Act, for which in any case the aforesaid clauses No. (i) to (iii) shall apply as the case Criminal Misc. No. 44549 of 2006 in
may be, he shall be entitled to bail if he has already undergone a total sentence of two years, which must include alteast twelve months after conviction.
In our view, no bail should be granted to a proclaimed offender, absconder or the accused repeating the offence under the Act. Similarly a foreign national who has been indicted under the Act and other traffickers who stand convicted for having in their possession extra ordinary heavy quantity of contraband (like heroine, brown-sugar, charas etc.) shall not be entitled to the concession of bail as extending the said concession to such like convicts, in our view, would certainly be against the very spirit of the 'Act'.
Similarly a convict who is sentenced for the commission of an offence punishable under section 31 and 31A of the Act shall not be entitled to be released on bail by virtue of this order.
The principles enumerated above would, however, have no effect on the concession of bail, otherwise provided under the provisions of the Act or any other law for the time being in force. At the same time these principles would also not affect the right of any convict to apply for interim Criminal Misc. No. 44549 of 2006 in
suspension of sentence on account of any exceptional hardship, which shall be dealt with according to the facts of the each individual case, nor shall it affect the right of convict to seek bail on the merits of case.
In our view, listing of an appeal on Board, of a particular Bench, should not be an impediment for exercise of the concession of bail.
Similary, the rejection of the previous bail application on merits or otherwise will not de-bar a convict, the concession of bail after the expiry of the necessary period of detention as detailed above.
Adverting to the facts of the case in hand, the admitted position is that the applicant-appellant is in custody since the date of his arrest. Mr.
Boparai after verifying the detention period of the applicant-appellant from the concerned quarters, makes a statement at the Bar that, he by now, has undergone more than seven years of his substantive sentence. We are also of the opinion that keeping in view the present situation, the possibility of the present appeal being heard in near future is very remote. We, therefore, allow the instant criminal miscellaneous and direct that the applicant- appellant shall be released on bail to the satisfaction of Chief Judicial Magistrate, Sangrur on his furnishing adequate surety bonds.
Criminal Misc. No. 44549 of 2006 in
We further direct that copies of this judgment be supplied free of costs to Inspector General of Prisons for the State of Punjab, Haryana as also of the Union Territory of Chandigarh for onward transmission to the jail/sub-jail under their control, for onward information of all prisoners.
Another copy of the judgment be supplied to Mr. D.D.Sharma, representing Union of India.
( Virender Singh )
( A.N. Jindal )
December 13, 2006 Judge
Criminal Misc. No. 44549 of 2006 in
Double Click on any word for its dictionary meaning or to get reference material on it.